People v. Pickett CA3 ( 2015 )

Filed 12/21/15 P. v. Pickett CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent, C077422
v. (Super. Ct. Nos. 14F135,
13F6732 )
JENELL WIND PICKETT,
Defendant and Appellant. OPINION ON DISMISSAL
Defendant Jenell Wind Pickett claims this court must remand her matter for
resentencing or permit her to withdraw her plea because her plea agreement provided for
a 10-year split sentence and she was instead sentenced to serve 9 years in county jail.
The People argue this court lacks jurisdiction to entertain defendant’s challenge because
she did not appeal the order imposing this sentence. As defendant did not appeal from
the order granting probation in which the sentence was imposed and execution
suspended, but from the subsequent order revoking defendant’s probation and requiring
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her to serve the previously imposed sentence, we agree with the People and dismiss the
appeal.
A detailed recitation of the facts is unnecessary to the resolution of this appeal.
Defendant pleaded no contest to bringing a controlled substance into a county jail (Pen.
Code, § 45731) in case No. 13-06732, transportation of a controlled substance (Health
& Saf. Code, § 11379, subd. (a)) and three counts of receiving stolen property (§ 496,
subd. (a)), and admitted an on-bail enhancement (§ 12022.1, subd. (b)) in case No. 14-
00135, in exchange for a stipulated 10-year split sentence pursuant to section 1170,
subdivision (h),2 referral to the “re-entry court” for supervision, and dismissal of other
charges. In the plea agreement, defendant acknowledged the maximum period of
incarceration she may have to serve would be 10 years, and her maximum period of
probation would be 5 years.
On April 7, 2014, the trial court pronounced judgment and sentence in both cases.
After considering the report of the probation officer and the stipulation of counsel that the
maximum period of confinement was 9 years rather than the previously agreed-upon 10
1 Undesignated statutory references are to the Penal Code.
2 When defendant was sentenced, section 1170, subdivision (h)(5), provided, in
relevant part, a defendant sentenced to county jail pursuant to the provisions of
section 1170 could be sentenced either: “(A) For a full term in custody as determined
in accordance with the applicable sentencing law,” or “(B) (i) For a term as determined
in accordance with the applicable sentencing law, but suspend execution of a concluding
portion of the term selected in the court’s discretion, during which time the defendant
shall be supervised by the county probation officer in accordance with the terms,
conditions, and procedures generally applicable to persons placed on probation, for the
remaining unserved portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated except by court order,”
which period is known as “mandatory supervision.” (Stats. 2013, ch. 508, § 5.)
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years, the trial court sentenced defendant to serve an aggregate term of 9 years -- the
upper term of 4 years for transportation of a controlled substance, a consecutive 2 years
for the on-bail enhancement, 3 consecutive 8-month terms for the receipt of stolen
property offenses, and a consecutive 1 year for bringing a controlled substance into jail.
The trial court suspended execution of the sentence for 3 years and ordered defendant to
formal probation under enumerated terms and conditions.3
One week later, defendant’s probation was revoked and reinstated following her
termination from a residential treatment facility. Then, in June 2014, defendant’s
probation was again revoked and reinstated, this time following her failure to report to
the probation department and failure to keep her global positioning system monitor
charged. Finally, in July 2014, defendant’s probation was revoked after her failure to
(1) keep her monitor charged, (2) appear in court, (3) enter a treatment program, and (4)
stay away from a location as required by the conditions of her probation.
After she admitted violating her probation, defendant requested that a split
sentence be imposed. The People argued defendant had been granted a suspended
sentence even though she was presumed ineligible for probation, and she had already
“been sentenced to nine years.” Defendant’s counsel responded that the plea agreement
had initially been premised on a split sentence, and that agreement had been “amended”
to order defendant on probation with a suspended sentence. On September 8, 2014, the
3 The judgment was subsequently amended by the trial court on July 28, 2014, to
indicate defendant’s confinement was to “local prison” pursuant to section 1170,
subdivision (h), rather than state prison.
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trial court terminated defendant’s probation and ordered her to county jail to complete the
sentence previously imposed. It is from this order defendant appeals.4
Pursuant to section 1237, subdivision (a), a defendant may appeal from an order
granting probation. “In general, an appealable order that is not appealed from becomes
final and binding and may not subsequently be attacked on an appeal from a later
appealable order or judgment. [Citations.] Thus, a defendant who elects not to appeal an
order granting or modifying probation cannot raise claims of error with respect to the
grant or modification of probation in a later appeal from a judgment following revocation
of probation. [Citations.]” (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421; see
also People v. Dagostino (2004) 117 Cal.App.4th 974, 997 [failure to file a timely notice
of appeal from the court’s order granting conditions of probation bars challenge to
conditions from being raised on appeal from a later order revoking probation]; accord
People v. Kelly (2013) 215 Cal.App.4th 297, 307 [involving failure to appeal from an
order imposing and suspending execution of a sentence and granting probation].)
Here, defendant did not timely appeal the April 2014 order granting probation in
which the 9-year sentence was imposed. (See Cal. Rules of Court, rule 8.308(a) [“notice
of appeal . . . must be filed within 60 days after the rendition of the judgment or the
making of the order being appealed”].) Therefore, defendant is jurisdictionally
foreclosed in this court from raising any issues relative to that judgment, including
whether a split sentence should have been imposed.
4 Defendant filed a notice of appeal on September 11, 2014. Even if this notice
were construed as a notice of appeal from the April 7, 2014 judgment, it would be
untimely because it was filed more than 60 days after the judgment. (See Cal. Rules of
Court, rule 8.308(a).) In her briefs, defendant does not claim she meant this appeal to
apply to the April 7, 2014 judgment, but argues the breach of the plea agreement arose on
September 8, 2014.
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DISPOSITION
The appeal is dismissed.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
BUTZ, J.
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